Keep in mind that one half of all new businesses start up with less than $20,000 in total capital. And as noted before, the majority of small businesses take out less than $30,000 in income each year.

To ensure fair, reasonable treatment under the law, several changes in the enforcement provisions are necessary. Of primary importance is a clear definition of "pattern or practice” of

discrimination. Currently, this phrase is defined differently in various laws. A reasonable definition would be to define pattern or practice as suggested by Attorney General Thornburgh in his recent letter to Senator Kennedy. He states that the term pattern or practice should refer to egregious and willful acts of discrimination.

Small businesses, particularly, may unintentionally commit acts of discrimination due to the vague language of the ADA bill. Remember that small business owners do not have access to civil rights attorneys and personnel managers to advise them on the complexities of this type of legislation which has never before applied to them. They do not have access to the Federal Register to get an idea of what they are required to do. And they frequently do not belong to organizations that can adequately inform them of what their specific type of business must do to approach compliance.

It would be naive to think that innocent violations of the law will not occur, despite the best intentions of business owners. Therefore, it would be reasonable and correct to reserve the civil actions brought by the Attorney General to those cases where discrimination was truly egregious and willful.

The original intent of civil rights legislation was to "make a victim whole". By providing injunctive relief, victims will be made whole. For those cases where discrimination is egregious, the civil penalties will still apply.

Also of concem in the enforcement section of Title III is the

undefined phrase "monetary damages". To NFIB's knowledge, this term has not previously been defined in case law. While the Senate committee report indicates that monetary damages are not punitive, it does not state what is intended.

The chief Senate sponsor provided some light to this issue by stating firmly and repeatedly that "damages" could not be awarded under the ADA bill. This would seem to imply that damages for pain and suffering, which can be large damage awards, are not to be included. However, neither the business community nor the courts have a specific definition upon which to understand potential liability without a clarification of "monetary damages". Therefore, NFIB strongly urges that monetary damages be specifically defined to mean out-of-pocket expenses incurred by a plaintiff as a result of the actions of a business. Such clear direction would provide consistency and understanding of the law.

Another concern with respect to the enforcement procedures in both Title I and Title III of the ADA bill is a result of a recent Federal court decision regarding jury trials. In the past, jury trials were not permitted except in cases brought under one particular law written in the post-civil war era. For civil rights laws written since 1964

(including the Civil Rights Act and the Rehabilitation Act used as bases for the ADA bill), no jury trials were allowed. However, in Beesley v. Hartford Fire Insurance Company, the court overturned the prohibition against jury trials, leaving a question about procedures for current civil rights cases.

A specific prohibition against jury trials in cases involving the disabled is important to maintain fairness. Unlike other types of civil rights, the determination on whether an individual is disabled under the provisions of the ADA bill will be very difficult to make. In addition, because of the subjective standards and vague language in the ADA bill, it will take many years of interpreting past civil rights laws, the legislative history of the ADA bill, and the regulations to make fair, balanced decisions.

Conclusion

As with all civil rights laws, fairness should be the overriding issue in the ADA bill. However, to date, the bill has moved much too fast for careful, thoughtful, responsible consideration. The Senate was held to artificial time deadlines that did not permit full and careful

consideration by Senators. In fact, the ADA bill was marked up just days before the August recess, and the committee report was not available until near the end of the recess. Yet the bill was brought to the floor only two days after Senators returned to Washington, and it passed the same day.

Unlike the Senate, Members in the House of Representatives have the opportunity to carefully review the language contained in the ADA bill. It is well worth the time and energy, since the bill affects virtually every business in America.

Think of the neighborhood dress shop built in a turn-of-the-century building; think of the dry cleaner on a steep incline; think of the hardware store with narrow aisles and goods stacked to the ceiling: think of the delicatessen where the owner is trying to feed, clothe, and educate his children. All of them will be affected in some degree by the ADA bill.

NFIB has listed a number of concerns with the Senate-passed ADA bill. While it is not an exhaustive list, addressing these points will result in an improved bill to accommodate the disabled and to assist the business community in attaining that goal. Several of the suggested changes are simply technical in nature to clarify intent. Others would make broader changes to make the bill more equitable which will better serve everyone.

Without question, the ADA bill is the most sweeping civil rights legislation since the Civil Rights Act of 1964. It is not enough to agree with the goals of the bill. Members of Congress must also reach a balance between noble intentions and the consequences of ill-considered language. NFIB urges Members of Congress to carefully weigh the ramifications of the specific language in the ADA bill to

enact the best legislation possible.

0206G/wl

Mr. EDWARDS. Now, Mr. Hoey.

STATEMENT OF CHRISTOPHER J. HOEY, ASSISTANT TREASURER AND ASSISTANT GENERAL COUNSEL, WOOLWORTH CORP., ON BEHALF OF THE INTERNATIONAL MASS RETAIL ASSOCIATION Mr. HOEY. Thank you.

I am Christopher J. Hoey. I'm assistant secretary and assistant general counsel for the Woolworth Corp., where I deal with personnel and employment law issues.

I am here for the International Mass Retail Association and its 140 major discount retail chain members, who operate over 25,000 stores and employ well over a million individuals. IMRA appreciates this opportunity to express the views of the Nation's mass retail industry on the Americans with Disabilities Act.

ADA's very laudable objective and important goal is bringing disabled persons into the mainstream of American life. We completely share that objective and endorse that goal. Achieving it will not only benefit disabled persons but the entire Nation. By resolving some practical questions about ADA's effects in some areas and by fixing some provisions in the bill that are ambiguous, imperfectly drawn, or have insufficiently considered likely adverse effects, this subcommittee can improve ADA.

IMRA's questions and suggestions on public accommodations fall into four main areas: (1) Identifying ADA's specific requirements for existing buildings and the costs they impose; (2) adopting a sitespecific test for what actions are readily achievable; (3) giving building operators sufficient flexibility to develop the most workable alternatives; and (4) clarifying new construction requirements, particularly in the area of potential places of employment.

Existing buildings-the Senate report stresses that ADA's intent is to require changes to existing buildings used by public accommodations only if they can be achieved without major expense or difficulty. IMRA remains concerned that this intent has been incompletely or imperfectly realized.

One statement in the Senate report has caused considerable concern in retailing. It states that ADA may require the removal of physical barriers, including those created by the arrangement or location of such temporary and movable structures as furniture, equipment, and display racks. For example, a restaurant may need to rearrange tables and chairs or a department store may need to adjust its layout of display racks and shelves in order to permit access to individuals who use wheelchairs where these actions can be carried out without much difficulty or expense.

Layout costs are substantial. My company normally calculates the cost of physically moving merchandise from one location to another within the store, even an adjacent location, at $2.50 per square foot. Thus, in a relatively small outlet of 10,000 square feet of selling space, a reconfiguration could cost the average retailer $25,000, but there are other much larger costs associated with relayouts.

Many stores have at least some aisles that are not wide enough for a wheelchair to navigate. It would be a drastic and, in some